6/18/2010 @ 6:00AM

Defending The iPad's Restrictions

I got an iPad as a birthday present a little while back (thanks again, Mom!), and am loving it. So when I heard that Cory Doctorow, the science fiction author and editor of the blog Boing Boing, was not enamored of the device, I was eager to learn why. I checked out his post expecting to read a review but instead found a diatribe. And one that cries out for a response.

“Why I won’t buy an iPad (and think you shouldn’t, either),” is Doctorow’s accurate and self-explanatory title. He concedes that the iPad’s design reflects “a lot of thoughtfulness and smarts,” but he is still not going anywhere near one and wants everyone else to stay away, too. In other words, he likes the device just fine; he just hates what it stands for. Like property rights and the clearly expressed desires and preferences of millions of people.

Doctorow is a well-known advocate of openness, sharing and tinkering with gear. He writes “I believe–really believe–in the stirring words of the Maker Manifesto: If you can’t open it, you don’t own it.” He rails against the fact that it’s hard to physically take apart the iPad, but he seems even more angry at the “technical and social infrastructure that accompanies it.” This infrastructure includes:

–Prohibitions on swapping, sharing, reselling and forwarding many kinds of content once they’re downloaded to the device. Comics from Marvel, ebooks from Amazon and many other digital wares can’t be easily copied and endlessly passed on.

–Gatekeeping by
Apple
with the App Store. Only Apple-approved apps can be easily installed on iPads, and the company works to keep out porn, malware and other stuff it deems inappropriate. Doctorow writes that the iPad’s “universe of apps [is] constrained to the stuff that the Cupertino Politburo decides to allow for its platform. As a copyright holder and creator, I don’t want a single,
Wal-Mart
-like channel that controls access to my audience and dictates what is and is not acceptable material for me to create.”

Neither do I, which is why I’m really glad for the one-two punch of the First Amendment and the Web. Doctorow, I and everyone else with Internet access in America are free to create almost anything we want with astonishingly few restrictions (the Supreme Court recently decided that even appalling depictions of animal cruelty are protected speech), and to distribute our digital content via the Web. And the iPad provides Politburo-free access to all this Web content.

Doctorow dislikes that in addition to providing Web access, Apple has also created the walled garden of the App Store and allowed companies like Marvel and Amazon to place restrictions on replicating some content delivered to the iPad. And even though I like free stuff, too, I’m really happy Apple put this infrastructure in place. Let me explain why.

Marvel’s comics are the company’s property, and the App Store is Apple’s. Every first-year law student learns to think about property rights as a bundle of sticks, with each stick corresponding to a different right. As law professor Jerry Anderson writes, these include “the right to convey, the right to devise, the right to use, and, at the top of the pile, the right to exclude,” or to keep others from doing certain things with the property.

Anderson is not alone in putting exclusion at the top of the pile. A 1982 Supreme Court ruling emphasized that the right to exclude is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” It’s the right at the heart of the patent system (a patent gives you the right to keep others from using your innovation without your permission) as well as the concepts of copyright, trademark and other forms of intellectual property (IP).

So Marvel, Apple and the other players in the iPad ecosystem aren’t doing anything new, weird, Orwellian or un-American. In fact, quite the opposite. They’re thinking about how to take care of and gain value from their property, two activities that have been at the heart of our legal, economic, social and technical infrastructure for a long time. Article 1, Section 8 of the U.S. Constitution gives Congress a set of powers, including, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Framers realized, as did their predecessors in English common law, that strong and clear intellectual property rights generate innovation.

Technology changes lead to important clarifications and extensions of the IP infrastructure, but they certainly don’t invalidate it. The fact that digital property can be perfectly endless, copied and replicated does not in any way imply that it always should be. The fact that digital platforms can be opened to all comers doesn’t mean that all of them must be.

Doctorow wants to give others the right to share and alter his own IP, and has taken advantage of legal innovations like Creative Commons licenses to permit this on terms he finds acceptable. Which is great. What’s not great is the insistence that other terms are harmful to society and worthy of contempt. Such a stance is wrong in both theory and practice.

The theory I hear him espousing in the iPad post and elsewhere is that the right to exclude with should be curtailed (if not eliminated) when it comes to IP–that digital goods should become something like communal property. If this argument were being made about physical property we’d recognize it immediately as an argument for communism, wouldn’t we? And once we did, wouldn’t we stop taking it seriously, and place it somewhere on the kooky-to-dangerous spectrum?

If the “information wants to be free” argument were right in practice, the iPad, Apps Store and other elements of non-communal digital infrastructures would be failures; people would recognize them as big corporate cons and stay away. Neither IP producers nor consumers would abide their restrictions, especially when totally open hardware/software/content ecosystems are available (Doctorow, for example, uses a Thinkpad running Ubuntu to surf the Web).

Well, more than 2 million iPads were sold within 60 days, and developers have created more than 5,000 apps for it (in addition to the more than 200,000 available for iPhones). It’s been welcomed by large and enthusiastic crowds around the world. It seems that many, many people have been waiting for something like the iPad–a reliable, easy-to-use, malware-free device that serves up many kinds of content, some of them free, some not.

I want to be clear about a few things: I like Creative Commons licenses, Wikipedia and Linux, the Maker Faire, and so on. I think the ethos they embody of tinkering, volunteering and sharing is wonderful. And while I’m not a code-slinging professional geek, I learn a lot from them and like hanging out with them. I’m a Fellow at Harvard’s Berkman Center, got invited to Tim O’Reilly’s 2010 FOO Camp East, and presented at SXSWi.

But I’ve also been teaching and researching at business schools for the past 15 years, and I’m an ardent capitalist. I feel about it the way Winston Churchill felt about democracy, which is that it’s the worst system for organizing economic activity except for all those other forms that have been tried. I believe that America’s extraordinary track record of innovation and creativity exists not despite its IP laws, but at least in part because of them. I applaud the fact that IP creators and owners have strong rights to exclude, even when these creators and owners are big, powerful corporations. And I really like the bundle of sticks contained in my iPad.